Search Warrant Gag Order Successfully Challenged In Court

from the UPDATE-GAG-ORDER-NOW? dept

Update: Adobe has clarified that this was not a National Security Letter (NSL), but rather a search warrant along with a "Delayed Notice Order" (DNO) that had no expiration. The principles are the same, but the vehicle was different. We have updated the article below and apologize for the error.

Another government request for info with a never-ending gag order is on its way to being published. There's no way of telling when it will arrive, but it will be sooner than the government's clear preference: never.

Thankfully, the court in Adobe’s case recognized the serious harm to free speech these gags represent. It held that orders barring companies from notifying their users about government data requests are both prior restraints and content-based restrictions on speech subject to strict scrutiny. That’s a very high bar. The court found that the indefinite gag order imposed on Adobe fails strict scrutiny because the government could make “no showing[] that Adobe’s speech will threaten the investigation in perpetuity.”

Adobe first contends that 18 U.S. § 2750(b) (“Section 2705(b)”) requires that the Court provide a date certain for the NPO’s [Notice Preclusion Order] expiration. The government contends that Section 2705(b) allows for NPOs of indefinite duration. The Court agrees with the government.

But it's this assertion -- the one the court agrees with -- that allows Adobe's free speech arguments to prevail.

Adobe next contends that the NPO is a content-based prior restraint that is not narrowly-tailored to achieve a compelling government interest. As such, Adobe argues, the NPO violates the First Amendment. (Appl. at 4-5.) The government argues that (1) Adobe does not have a right under the First Amendment to notify the Subscriber of the Warrant’s existence; and (2) even if Adobe did have such a right, the government’s compelling interests justify the NPO as currently tailored. The Court finds that a narrower tailoring of the NPO is warranted.

[...]

As written, the NPO at issue herein effectively bars Adobe’s speech in perpetuity. The government does not contend, and has made no showing, that Adobe’s speech will threaten the investigation in perpetuity. Therefore, as written, the NPO manifestly goes further than necessary to protect the government’s interest.

The court also isn't interested in helping the government shift the burden to Adobe as to why this NPO shouldn't be in place indefinitely. In fact, it finds the government's attempt to do so undermines its "this doesn't implicate the First Amendment" arguments.

The government further argues that the NPO is already limited by the Court’s discretion to set an end at some later date. As this “judicial[] limit[]” allows “both Adobe and the government to apply for the order to be lifted after its raison d’etre fades, the NPO is as narrowly-tailored as required.” (Oppo. at 17.) This argument ignores the fact that Adobe is not privy to the government’s investigation. Thus Adobe will not know when the NPO’s “raison d’etre fades.” Moreover, virtually every statute, regulation, order, or other government-imposed restriction on speech can be attacked in a judicial proceeding. Therefore, the government’s argument – in essence, “The order is narrowly-tailored because Adobe has the option of challenging it in court” – demonstrates nothing of relevance.

In any event, putting the onus on the speaker to lift a no-longer-justified content-based restriction is hardly narrow tailoring. Adding the fact that the speaker cannot know when the restriction’s “raison d’etre fades” effectively equates to no tailoring at all. An RCS provider might decide to forego speaking rather than incur the trouble and expense of potentially futile court trips. That the government could in theory, apply to have the NPO lifted is no answer. As the NPO does not apply to the government, the government would have little incentive to do so. Accordingly, on the record before the Court, the government’s argument does little more than illustrate the NPO’s potential for burdening or chilling Adobe’s speech.

Other similar litigation is still ongoing and this decision bears little precedential value, especially in other circuits. But every judicial citation attacking indefinite gag orders helps, especially as these challenges are becoming more common as a result of the USA Freedom Act's creation of new redress options for gag order recipients.

Reader Comments

Thanks

Thank you for the update.

I've always thought these perpetual restraints on speech are inherently unconstitutional. While I understand the underlying arguments, I find them extremely unpersuasive. The government entire argument boils down to: "Because I said so!" In that annoying parental unit tone. These gag orders are, in the long run, detrimental to society because they allow the government to hide too much from the citizens. All three branches have been very disappointing in how they have dealt with the surrounding issues so far. Hopefully the judiciary will finally find the backbone to do their jobs effectively.

Re: Thanks

I agree.

All gag orders should be required to specify a reasonable end-date. If the "raison d’etre" still exists as that end-date approaches, the onus should be on the government to formally extend that end-date, by filling out the appropriate paperwork, as they are the only ones who know whether they still need it or not.